Grenada Constitution Reform: Crac Ultra Vires

by J. K. Roberts
(Sound Public Policies Advocate)

The Constitution Reform Advisory Committee (CRAC) was appointed in September 2013 by the Minister of Legal Affairs, Elvin Nimrod, and was launched in January 2014 by the Prime Minister, Keith Mitchell. The committee consists of 12 representatives of ‘specially selected’ interest groups, including political parties and religious denominations.

It has been placed under the chairmanship of Grenadian constitutional lawyer, Dr Francis Alexis QC, and the Senior Legal Counsel in the Ministry of Legal Affairs, Mr Robert Branch, also forms part of its membership, with his role as the Focal Point between the CRAC and the Government. As implied, CRAC is to advise the Government on Constitution Reform; however, this is without any well-defined parameters, criteria and legal provisions for its existence and operations. Interestingly, an operating budget for the life of the CRAC was also not given.

The establishment of the CRAC in this manner, especially without the sovereign consideration, engagement and inclusion of the people, has been in question since its inception, and this ill-conceived arrangement has been detested and denounced. To foster zealous interest and meaningful stake of the people in the Reform Project which was initiated in March 1979 with the suspension of the also ‘ill-conceived’ 1974 Independence Constitution, a much more democratic and appropriate mechanism has been advanced, but this has been met with scorn by the powers-that-be. See “Grenada Constitution Reform: Process is Critical!”, which brings to attention the fundamental principles and best practices to be observed in such a noble undertaking, a constitutional referendum.

Presumably, the representative composition and the primary functions of the CRAC as instructed by Minister Nimrod, were arrived at by the Cabinet. The CRAC is required to continue the consultative process of Constitution Reform leading ultimately to a Referendum on the Grenada Constitution, ensuring that the further consultations be concluded within 9 months to 1 year; and to provide oversight to the process of Constitution Reform so as to ensure that the process is transparent and credible, creating the atmosphere of consensus. Also of a concern is that the interpretation and application of these functions lie exclusively within the ‘whims and fancies’ of the CRAC and the Cabinet, without any independent tribunal or independent ombudsman to arbitrate on behalf of the people. Recall the previous article “Grenada Constitution Reform: A One Sided Affair!”, which highlights the monopolistic and unilateral dictates of the powers-that-be on the Reform Project.

The Government has no genuine intention to reform the constitution so as to reflect the sentiments and aspirations of the people, and to reflect accountable governance in the name and interest of the people. The people are kept remote from the Reform Project, with the absence of protocols and processes which would engender their participation and pride in the exercise, and they are further disadvantaged with misrepresentations by the CRAC. The CRAC acts as ‘jury and judge’ on its performances and decisions; and on controversial issues with the people, it declares that its position is a “reasonable compromise”. The so-called consultations which were conducted have been without a Working Document for the people; and in fact, the people are still awaiting a report from the CRAC on a vibrant national consultation been held in October 2014, which had international attraction.

The CRAC submitted two reports to the Government, with pertinent recommendations; the first is dated 9 July 2014 and the second dated 22 November 2014, but none of them is easily available to the people. A referendum date was presented for 10 February 2015, but the date had changed on at least three different occasions to the point of now having it scheduled for within the first quarter of next year 2016; and this is so, even without the appointment of a Referendum Commission as required under the Referendum Act and without pertinent regulations from the Act (CAP. 279 of the 1990 Revised Laws). CRAC had participation in a Donors Conference on 19 November 2014 in Barbados, organized by the United Nations Development Programme (UNDP), as a significant outcome of the October National Consultation, to assist Grenada with technical and financial assistance for the referendum; also review “Grenada Constitution Reform: United Nations Position.”

The main Opposition Party, the National Democratic Congress (NDC) withdrew as a member of the CRAC effective 30 March 2015, expressing its “dissatisfaction with both the procedure and substance of the Committee’s (CRAC) Report(s)”and “a failure on the part of the Committee to subscribe to the required standard” to meet what is set out in the document for the Reform Project. The representative of Civil Society on the CRAC, in the form of the Inter Agency Grouping of Development Organisations (IAGDO), refused to sign the 22 November 2014 report, taking issue with the process being carried-out by the Committee and making the case that the opportunity should be given to “the wider public to be engaged in the decision-making(s)… that will fundamentally affect their lives and future”. The relevance and effectiveness of the CRAC become more uncertain, as the presence and ‘active and full’ participation by the majority of its representative-members, including the Youth Representative, in critical meetings and decisions, is not evident.

Notwithstanding the negative attributes which relate to the formation and performance of the CRAC, there is no mistake that in accordance with its mandate, the CRAC should be confined to completing the consultations on the review of the Constitution and be preoccupied with entertaining and directing dialogues with the people on the issues for the referendum. The CRAC does not have the authority and the capacity to mobilize and educate the people on the referendum, to decide and draft the referendum Bills, and to campaign and influence for the referendum. Moreover, whilst understanding and welcoming the role of the Government to facilitate the Reform Project, like CRAC, it does not have the prerogative, without the consensus of the people, to determine the issues for the referendum.

The proclamation by the CRAC that once the Cabinet reaches its conclusions on constitution reform, it (CRAC) would then focus on informing the public of those subjects taken forward to the Referendum, explaining those subjects and seeking to persuade the public to vote in support of those subjects at the Referendum, is offensive to the people. The referendum phase undertaken by the CRAC is ‘ultra vires’, its primary functions and this action may prove to be in contravention of the ‘universal norms’ for holding a ‘credible and successful’ referendum, as well as, it may have extensive legal implications.

There are many ‘missed steps and oversteps’ by the powers-that-be on the road towards Constitution Reform, and the arbitrary powers demonstrated by the CRAC may well result in the need for judicial redress for irregularities involved with the conducting of the referendum. The response of the Government and the CRAC to the recommendations of the United Nations and the Commonwealth on the matter of legal correctness, electoral readiness, and public education on the contents and presentations of the referendum Bills and on the format and requirements for voting on those Bills will manifest their (Government/CRAC) goodwill for the people. On this matter, the recognition of the role of Civil Society is absolute.

The recent article, “Should the 2015 Elections in Trinidad and Tobago be declared Null and Void?” should be instructive, particularly for both the politicians and the people of Grenada. This article was written by Dr Lawrence A Joseph, once an Attorney-General and Minister of Legal Affairs in Grenada, and now a consultant to the Government on parliamentary and legal matters including constitutional reform. It presents amongst others, the occasions which would arise for settlements on the technicalities and ambiguities of legal concepts such as acting in his/her deliberate judgement, acting without the direction or control of any other person or authority, and acting within statutory rules and regulations. Abundance of caution must thus be exercised in formulating and executing laws.

Further for caution are the lessons coming from the experience of the 2015 elections in St Kitts and Nevis, as raised by Sir Ronald Sanders in his internet-circulated article, “St Kitts-Nevis Election Fiasco – Symptom of a Bigger Problem”. Both Joseph’s and Sander’s articles highlight how loopholes and shortcomings of legal provisions, even in a supreme constitution, can be exploited unconscionably. To ignore these lessons and pertinent advises otherwise, in the conduct of the constitutional referendum for Grenada would tantamount to committing or condoning or even conspiring electoral fraud. The ‘loyalty and integrity’ of the CRAC is being put to the test. Will the CRAC continue to function ‘ultra vires’ against the people, their democratic institutions and principles, and the virtues of a noble undertaking, in favour of partisan influences?

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